ARCHIVED: Commentary No. 82: Reshaping Intelligence to Share with "Ourselves"

Gregory F. Treverton

July, 2003
Unclassified

Commentary No. 82 has been archived.

Editors Note: Gregory F. Treverton is senior policy analyst at RAND and senior fellow at the Pacific Council on International Policy, a West Coast leadership forum. His latest book, Reshaping National Intelligence for an Age of Information is available from Cambridge University Press; http://www.cup.org.

Disclaimer: Publication of an article in the Commentary series does not imply CSIS authentication of the information nor CSIS endorsement of the author's views.

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Introduction

The world of intelligence was just starting to come to grips with the end of the Cold War when the September 11 terrorist attacks occurred. The collapse of the Soviet Union took away the threat by which all else was measured. Meanwhile, rapidly changing technology was blurring the distinction between strategic and tactical intelligence, and the explosion of global information networks was creating both opportunities and competition for national intelligence agencies. The end of the Soviet Union and the shrinking of "denied areas" in the world, plus the technological revolution, meant that intelligence was beginning to learn to cope with huge amounts of openly available information, but which mixed fact, fiction, fancy and disinformation.

Then September 11 struck. It made all too real an emerging threat, and created a sudden demand for an immediate response by intelligence-a response across not just levels of government in federal systems. The response also needed to cut across distinctions-law enforcement and intelligence, domestic and foreign, public and private-that were already coming into question. That response may be the hardest of all, for it requires intelligence not only to share information across nations, but to work at home with a range of government officials and private citizens who are newcomers to intelligence, to what it is, what it can do and what it cannot.

The size and technology of U.S. intelligence put it in a class by itself. Yet it is striking the extent to which countries that took intelligence seriously during the Cold War face fractals of the same challenge-whether those countries are former neutrals, NATO allies or former enemies. All have significant intelligence institutions, ones that for the most part were dominated by the military. All of them are asking how that capacity can be reshaped to cope with a new world and new threats, and do so without infringing too much on the liberties of their citizens. In that sense, the example of the United States can be instructive, and so, too, can the United States learn from the experiences of others.

The Cold War Legacy

During the high Cold War, there was a certain logic to the way U.S. intelligence was, and is, organized. It was structured by source, according to the different ways intelligence is collected-the National Security Agency (NSA) for intercepting signals, or SIGINT; the CIA's clandestine service for spying, or human intelligence (HUMINT) and the recently created National Imagery and Mapping Agency (NIMA) for imagery or IMINT. (In the special language of intelligence, everything not from a secret source is referred to as "open source.") These different "INTs," or "stovepipes" in the language of insiders, could each concentrate on the distinct contribution it made to understanding the over-arching target, the Soviet Union. In the process, though, the INTs became formidable baronies in their own right. Meanwhile, analysis was centralized in the CIA's Directorate of Intelligence (DI) but not monopolized there; it had competitors in the Defense Intelligence Agency (DIA), State's Bureau of Intelligence and Research (INR), and elsewhere around official Washington.

Now, however, the old structure just has to be wrong. No business would organize this way, so much has changed. During the Cold War, there was one pre-eminent target, the Soviet Union, a fairly narrow set of consumers-mostly political military officials in the U.S. government, and a limited amount of information, mostly from special sources "owned" by intelligence and deemed reliable. In the new environment, however, there are many targets and many consumers, along with torrents of information, most of it not "owned" by intelligence and of widely varying reliability-as anyone who surfs the Internet can testify.

The explosion of information means that policy officials will be more, not less, reliant on information brokers. If collection is easier, selection will be harder. The more open world is blurring the Cold War's distinction between collection and analysis. The best looker is not a spy-master, much less an impersonal satellite, but someone steeped in the substance at hand-in short, an analyst. Yet analysts now get rewarded for being generalists, not deep specialists, and in some areas, like economics, intelligence cannot compete with the private sector. Analysts are, though, cheap by comparison to satellites, and hiring more people from outside, even for brief tours, would deepen the intelligence community's expertise.

Puzzles versus Mysteries

Now, intelligence is in the information business, not just the secrets business, a sea-change for the profession. In the circumstances of the information age, it is time for the intelligence community to "split the franchise" between puzzles and mysteries. Puzzles have particular solutions, if only we had access to the necessary (secret) information. Puzzles were the intelligence community's stock-in-trade during the Cold War: how many missiles does the Soviet Union have? How accurate are they? What is Iraq's order of battle? The opposites of puzzles are "mysteries," questions that have no definitive answer even in principle. Will North Korea strike a new nuclear bargain? Will China's Communist Party cede domestic primacy? When and where will Al Qaida next attack? No one knows the answers to these questions. The mystery can only be illuminated; it cannot be "solved."

Today's tactical puzzles where secrets matter are both fewer and more varied than the Cold War's Soviet puzzles, but they retain their importance. For solving puzzles, analysts need to be close to the collectors of secrets. In a world of too much information, policy-makers will want to "pull" up what they need, not have information "pushed" upon them; they will want to pull up puzzle solutions when they need them, not receive a torrent of information whether they ask for it or not. Yet solving the puzzle is often important enough that getting policy officials to pay attention is not a problem.

Mysteries, such as where and how terrorists will next attack, are surely more abundant now, and the franchise of framing strategic mysteries is very different from puzzle-solving. For it, analysts need access to secrets, but their crucial partnerships are those with colleagues outside intelligence and outside government, in the academy and think-tank world, in non-governmental organizations (NGOs) and in the world of private business. Intelligence needs to be opened wide, not cosseted in secret compartments. This franchise is based upon the recognition that intelligence's business is information, not secrets, and that its product is people (experts), not paper.

In a world where both structures and U.S. interests are up for grabs, policy-makers might be better served by intelligence brokers close at hand-down the hall, not out at the CIA in Virginia. This argues for blurring another of the Cold War's distinctions, that between policy and intelligence. There are some consistent alignments among targets, analysts, customers and collectors. In these circumstances, a firm would organize around lines of business, establishing a distributed network or a loose confederation in which different parts of intelligence would endeavour to build very close links to the customers each served. The existing Director of Central Intelligence (DCI) centers-for counter-terrorism, counter-narcotics, and the like-are a suggestive model. They organize around a problem or line of policy. Their limitation is that they primarily integrate within the world of intelligence, though they do provide a focal point for connecting to policy. And the distributed network would be "virtual," not bricks and mortar, because while some problems, like North Korea or terrorism, will be enduring, others will rise and recede quickly.

The Force of Cold War "Oppositions"

The Cold War legacy ran deeper than establishing distinctions between secrets and open information, analysts and collectors, and policy and intelligence. For good reasons, mostly associated with protecting the rights of citizens, the United States set up "oppositions" that also were not bad during the Cold War but set us up to fail now in the war on terrorism.

The first opposition is law enforcement versus intelligence. The two are very different worlds. Intelligence is oriented toward the future and seeks to inform policy makers. It lives in a blizzard of uncertainty where the "truth" will never be known for certain. Because intelligence strives above all to protect its sources and methods, intelligence officials want desperately to stay out of the chain of evidence so they will never have to testify in court. By contrast, law enforcement is not interested in policy. Rather, its business is the prosecution of cases. And law enforcement knows that if it is to make a case, it must be prepared to reveal something of how it knows what it knows.

The second is foreign versus domestic. When President Harry Truman created the CIA in 1946, he worried openly about a "Gestapo-like organization," and so the new agency was barred from both law enforcement and domestic activity. In the 1970s, it was literally true that the directors of the CIA and FBI didn't speak to one another. That state of affairs has improved, but still relations between the two are frayed. The National Security Agency is also barred from law enforcement and from domestic spying, so if the trail of conversations on which it is eavesdropping becomes "domestic"-that is, involves a U.S. citizen, corporation or even resident alien - the trail must end.

In the mid-1970s, Congress's first-ever inquiry into intelligence (which I served as a staffer), the Senate Select Committee on Intelligence Activities, headed by then-Sen. Frank Church, D-Idaho, investigated abuses of the rights of Americans. The most serious of those abuses, which included the harassing of Martin Luther King along with many American religious and political groups, had emerged from COINTELPRO, a curious mixing by the FBI of law enforcement and intelligence ostensibly for domestic counter-intelligence purposes. Our response was to raise the walls between intelligence and law enforcement - for instance by creating a special court, the Federal Intelligence and Surveillance Court (FISC), to review applications for national security, as opposed to law enforcement, wiretaps and surveillance.

The third opposition is public versus private. During the Cold War, national security was a federal government monopoly. To be sure, private citizens and corporations were involved, but there was a neat correspondence between the threat as defined and the federal government's national security machinery that was developed to meet that threat. The war against terrorism and homeland security will be much less a federal government monopoly. Ordinary Americans and the economy are already suffering the inconvenience and higher business costs of much tighter security. And tragically, more ordinary Americans are likely to die - drawn involuntarily into the war against terrorism.

All three of these distinctions-between law enforcement and intelligence, foreign and domestic and public and private-were all too vividly on display before September 11. The investigation of the joint House-Senate committee looking into September 11 provided new details but did not change the basic story. ¹ Sharing of information across the oppositions was ragged at best. Focused on law enforcement and constrained by the need to open a case, the FBI's pursuit of the antiterrorism mission was uneven. Blocked by the high walls protecting privacy, the FBI couldn't get into alleged 20^th hijacker Zacarias Moussaoui's laptop until after the attacks.

For instance, the CIA apparently sent a cable, in August 2001, warning of two Osama Binladen associates who had entered the United States and two others who were expected to attempt entry. Apparently, the FBI did little with the information and also failed to share it with the Immigration and Naturalization Service until the INS had already admitted the other two into the country, on the grounds that the INS was not a "law enforcement" organization. No agency told the Federal Aviation Administration to be on the lookout for the four men, apparently because it, too, was not in the law enforcement business. And nobody told the airlines because they were private, not public.

Meanwhile, the suspected "twentieth hijacker," Zacarias Moussaoui, had been arrested on August 16 in Minneapolis for a visa violation. FBI agents at the field office suspected him of terrorism and sought, increasingly desperately, to search his laptop computer. They were frustrated in a debate with headquarters and the Justice Department about one of those walls between intelligence and law enforcement that had been raised during the 1970s, the FISC. Before FISC, presidents had claimed the prerogative of warrantless searches for national security purposes, so the court was a compromise between presidential discretion and civil liberties. Before September 11, however, by the FISC standard, the "primary purpose" of any search had to be a suspected connection to a foreign power, and Moussaoui, who at that point had been connected only to the rebels in Chechnya, did not meet that standard. ²

Sharing with "Ourselves"

The distinctions were not forced on the United States. Rather, for the most part, Americans chose them, and mostly for good reasons. In a very real sense, the CIA and FBI were meant to cooperate, but not too closely, lest the rights of Americans be violated. The rub is that the terrorist threat does not respect any of those distinctions. It bridges the old world of intelligence and the new. It is part of the old world because terrorists hardly advertise their plans, so traditional intelligence methods of spying and eavesdropping are critical. But it is a part of the new world because even the United States cannot fight the war on terrorism alone. Even if the United States improved its HUMINT dramatically, other nations and groups-including some that are not friends-would have more success against hard terrorist targets. The United States has disclosed that it is sharing intelligence with 24 nations that it had not cooperated with prior to the present war. These include Sudan, which would have been nothing more than a target before September 11.

The still harder challenge may be cooperating with "ourselves"-across the oppositions. Not only are there, by one count, 18,000 governmental entities involved in the war on terrorism in the United States, but there are many more if private players are added, not just corporations but NGOs as well, and almost none of them have security clearances. Not surprisingly, thus far intelligence-sharing has been very haphazard. After September 11, it turned out that there was information about possible nuclear threats to New York, information that no part of the federal government troubled to share with New York officials. At the other extreme, California's governor interpreted very skimpy information about threats to the state's bridges as a reason for public announcement and stepped-up protection.

Like Canada, the United States has begun the process of rethinking Cold War distinctions. Intelligence and law enforcement have been pushed toward each other, yet how far remains controversial. For instance, the 2001 USA Patriot Act made it easier to move information across the organizational divide. Before the law was enacted, any information that was before a federal grand jury could be shared with CIA analysts only with a court order. Thus, analysts might be denied access to information that was a critical puzzle piece in their effort to understand terrorist networks. Now, that information can be shared more easily. The act also loosened the FISC standard to permit covert searches if investigating the suspicion of a foreign connection was a "secondary purpose." The new law updated wiretapping authority to cope with a world of multiple, mobile cell phones, not just static, analog phones. In 2002, FBI director Robert Mueller relaxed rules that had restricted FBI agents from activities that are permitted to ordinary citizens, such as surfing the Internet or visiting churches and similar public places of interest.

In the autumn of 2002, Congress authorized a new Department of Homeland Security (DHS), with its own intelligence unit. That unit will have authority to both receive raw intelligence and task the intelligence collectors. It will need access to foreign intelligence and to the domestic material that emerges from law enforcement. It will not be simply a departmental intelligence operation like the State Department's Bureau of Intelligence and Research. Rather, it also should serve the broader set of officials, especially in the White House office, whose mandate is homeland security.

It will be focused on terrorism and oriented domestically. Of current institutions, the CIA and intelligence's Counterterrorism Center, which is located at the CIA, are, for legal reasons, aimed mostly abroad. Operators, not analysts, have dominated the Center. Before the DHS, remarkably, no agency systematically reviewed domestic information for intelligence and warning purposes-as opposed to law enforcement; the FBI has only expressed the intention to begin doing so.

The DHS intelligence capacity should link intelligence more tightly to warning. Getting warning too close to operations was a concern after the bombing of Pearl Harbor in 1941, but seems the right approach now. In the run-up to Pearl Harbor, Army and Navy intelligence had, apparently, been reluctant to sound the tocsin based on what was inevitably "iffy" evidence. They were close to their operational colleagues and thus knew that it was a costly nuisance for those operators to act on warning - for instance, putting the fleet to sea - if the warning turned out to be a false alarm. ³ The concern is fair, but now the warners (at the CIA, for instance) are so disconnected from those who must act that they are tempted to overwarn - a temptation in evidence in the summer of 2002. Moreover, the new assessment capacity will have lots of competition around town, hence lots of checks should its assessments appear to be tailored to suit the convenience of DHS operators.

The new unit also could provide additional incentive for the CIA and the FBI to communicate, in the form of another set of eyes looking at, and to, both, and trying to integrate information from both. It hardly would be decisive in producing easier communication between the two main agencies-there is too much history, not to mention constitutional concern. But the new intelligence unit would be a customer with a direct stake in the intersection of the information and analysis produced by the two.

The homeland security office instituted a stoplight chart of national warning, ranging from green through blue, yellow and orange, to red. The idea was based on twenty years of experience in Britain. It is a good one, but the United States lacks Britain's experience, so no one--not state and local officials, much less private citizens-knows yet what the colors mean. With time and experience, the DHS intelligence assessors could help the colors begin to acquire some meaning for public officials and private citizens alike. 

Rethinking "Domestic" Intelligence

The implications of the changed threat run well beyond organization, to what is collected, by whom and under what restrictions-very sensitive issues of domestic intelligence gathering. The September 11 terrorists not only trained in Afghanistan, they also used European cities like Hamburg, Germany, and Brixton, England, as staging areas where they could live, train and recruit in a protective environment. Similarly, they mixed easily in some areas of the United States, south Florida and southern California, or Buffalo, New York. The nation's need is not just to follow individuals, it is also to know what is being said on the streets and in the mosques of Brixton or Boston-it is doing what has heretofore been considered "foreign" intelligence domestically.

The terrorist threat takes us back to just the thicket that investigations of intelligence worried about a generation ago. Then, the investigations led to higher walls between intelligence and law enforcement. Now, shifting the culture of the FBI from law enforcement to prevention, as Director Mueller has called for, is a dramatic change, so dramatic that it may not be wise. In any case, it is the work of a generation, not a couple of years. Ultimately, if we require not just good law enforcement but good domestic intelligence, can the FBI do both? Former national security adviser Brent Scowcroft suggested creating a separate career track in the bureau for intelligence-a call that fell on stony ground. By tradition, law enforcement has been the bureau's dominant mission, and its internal pecking order has been dominated by special-agents-in-charge. Should the FBI be split into two agencies, one for law enforcement and the other for domestic intelligence?

If domestic intelligence is now an urgent need, should we create not just a Department of Homeland Security, but a home office-our version of MI-5, the British domestic intelligence service-as several members of Congress have suggested? Creating a new service would not solve the turf disputes born of overlapping missions-MI-5 and Britain's pre-eminent law enforcement agency, Scotland Yard, disputed for years which one would take the lead in dealing with the IRA terrorist threat to England. But, somewhat paradoxically, a separate U.S. domestic service might make for clearer lines of accountability than would making domestic intelligence the stepchild in a reshaped FBI.

And if domestic intelligence means not just tracking suspected terrorists but also monitoring the chatter in the mosques of Chicago or the strip malls of south Florida, how much risk are we prepared to run that rights of Americans, let alone non-Americans (who have far fewer), will be compromised? Finally, in the other direction, how does the public provide warning? Do people call local authorities, visit Web sites or offer anonymous tips? Should there be penalties for false calls or for tips that turn out to be score-settling? How should feedback be handled? Local authorities now complain routinely that they never hear what happens with information they provide to the FBI.

These questions lie ahead. Tomorrow's answers will not be the same as yesterday's, and it makes sense to take some time to frame those answers. But they will depend on assessments of the urgency of the terrorist threat, and thus where the nation feels it must strike the delicate balance between protecting its citizens and safeguarding their liberties.

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Endnotes

¹See http://www.fas.org/irp/congress/2002_rpt/index.html

²Philip Shenon, "Traces of Terror: The Terror Suspect," New York Times, July 7, 2002, p. A24.

³The classic study of the failure of warning at Pearl Harbor is Roberta Wohlstetter, Pearl Harbor: Warning and Decision (Stanford: Stanford University Press, 1962).

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